Unions rigged the rules, but can do little more than brace for end of mandatory union dues

By Steven Greenhut
November 27, 2017

Sacramento

Virtually everyone enjoys the prospect of watching the class bully, who has spent ages tormenting the weak and powerless, get a justified comeuppance. It’s particularly entertaining when the tough guy cries about the unfairness of it all when the tables finally are turned – and there’s nothing he can do about the well-deserved retribution.

We’re watching something similar play out in California politics. The state’s public-sector unions are used to ruling the roost. They rarely hide their smugness. They are the most powerful interest groups in the state Capitol, and every constitutional officer from the governor down has been elected with strong union support. They control counties, city councils and school boards.

The results are clear. Pension liabilities are soaring because unions thwart pension reform. Charter schools are tormented. Bad police officers are protected. Taxes always go up, because unions make it impossible to reform poor-performing public services in a way that helps stretch the taxpayer dollar. Union-allied politicians win the preponderance of races at all levels because of union war chests. Union officials brag about their power.

But now public-sector unions are worried. The folks who strut around the Capitol like they own the place (because they do own the people who run it), can’t hide their sense of terror. And there’s not a darned thing they can do about it because the issue will likely be decided at the U.S. Supreme Court. Even California’s government unions can’t control high-court justices.

The case is Janus v. AFSCME (American Federation of State, County and Municipal Employees), and it stabs at the heart of union power: mandatory dues paying. The core reason that union officials behave like bullies is that, in non-right-to-work states such as California and Illinois, public workers must join unions and pay dues to a mandated bargaining unit. Unions have a never-ending source of cash they use to buy politicians and influence legislatures.

In the 1977 Abood v. the Detroit Board of Education decision, the U.S. Supreme Court ruled that workers can be forced to pay so-called “agency fees” that fund “collective bargaining, contract administration and grievance adjustment purposes” although they cannot be forced to fund a union’s political activities. Since then, unions have collected these dues – then forced workers who don’t want to be members of the union to opt out of the political dues portion.

Those who want to opt out are put through a convoluted process to keep a small portion (usually around 10 percent) of their dues. Not surprisingly, the unions make it as difficult as possible for workers to opt out of any payments. That situation was threatened in 2016 by the Friedrichs v. California Teachers Association case. Some California teachers, including Orange County teacher Rebecca Friedrichs, argued that mandatory collection of such agency fees was a violation of the U.S. Constitution’s First Amendment.

The constitutional argument was a strong one. “Requiring teachers to pay these ‘agency fees’ assumes that collective bargaining is non-political,” explained the Center for Individual Rights, which supported the Friedrichs lawsuit. “But bargaining with local governments is inherently political. Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.”

In other words, all public spending choices – not just direct contributions to voter initiatives and political campaigns – are inherently political. Why should a teacher be forced to pay for bargaining decisions that, say, make it more difficult to fire poor-performing teachers, or that make it impossible to reform an overburdened pension system? Most court watchers believed the Supreme Court was about to toss mandatory dues, but then conservative Justice Antonin Scalia’s untimely death led to a split court. The resulting 4-4 verdict left the existing system intact.

But the exact same issue is headed back to the court again, this time in  Janus. In that case, an Illinois state worker named Mark Janus argues that it is a constitutional violation to force him to fund the activities of AFSCME, whose positions he opposes. With Donald Trump appointee Neil Gorsuch replacing Scalia, virtually everyone – including most union leaders – believes the current dues situation will be overturned.

California union officials saw the handwriting on the wall and did what they do best – they bullied the Legislature and governor into giving them special privileges that attempt to undermine the high court. As part of the state budget passed last summer, “Unions would gain mandatory access to new employee orientation sessions in schools, cities and in state government through one of two labor-friendly provisions that lawmakers inserted into the state budget last week without much debate,” according to a Sacramento Bee report. But those laws can’t stop the court; they can only make it easier for unions to organize after the decision.

There’s not much else they can do about the situation, other than whine and complain, of course. The Bee quoted top California union officials who offered apocalyptic rhetoric: “Everything is at stake,” said one. “It’s a blatant political attack,” said another. “That’s a way that the corporations are trying to take our legs out from under us,” complained yet another.

But the unions know what’s coming. The pro-union Labor Notes opined in October: “The whole public sector will likely become ‘right to work’ next year, barring another miracle at the Supreme Court. Once the conservative majority rules in Janus v. AFSCME, likely before June, life will change for unions in the 23 states that till now have rejected right-to-work laws. Public sector unions in those states will no longer be able to collect ‘agency fees’ from workers whom they represent but who choose not to join their locals.” Note the sense of resignation in its explanation.

The court’s coming ruling could, ironically, save the public-sector labor movement from itself. That Labor Notes article looked at a variety of union groups in Massachusetts and California and found that they are preparing for the end of mandatory dues payments by – get this – improving their organizing skills, campaigning on issues that members care about, having one-on-one conversations with members and re-energizing grassroots activism.

“I think it’s going to hurt, but it need not be the end of the world,” said Joshua Pechthalt, president of the California Federation of Teachers, according to Labor Press. “Frankly, we’re going to have to do the kind of organizing that we should have been doing all these many years. I think the labor movement got a little bit complacent.” Even the California Teachers’ Association, which has been among the harshest critics of the Friedrichs and Janus cases, in 2014 published a presentation called “Not If, But When” that deals with the eventual end of mandatory dues collection. CTA focused on increasing the value CTA offers to its members.

How is that a bad thing? The end of coercion may be the beginning of a re-energized union movement that is more oriented toward workers and less oriented toward the goals of the union bosses. What a radical idea – and one that could even benefit taxpayers, who usually are left out of the equation. It will mean that union officials will spend less time lobbying state legislators and more time tending to the needs of their members. The death of coerced unionization may also lead to pension reform that actually saves their pensions from the recklessness and utopian promises of union leaders.

It’s too early to celebrate, but it’s awfully nice thinking that some of the state’s biggest political bullies might soon have to learn how to play nicely with others.

Steven Greenhut is contributing editor of the California Policy Center. He is Western region director for the R Street Institute. Write to him at sgreenhut@rstreet.org.

MORE GREAT ARTICLES

The California Policy Center is a 501c3 non-profit public charity. CA Corp. # 3295222. Federal EIN 27-2870463.
Copyright © California Policy Center 2017. All rights reserved. Developed by The Liberty Lab, Inc.